<br><br><div class="gmail_quote">---------- Forwarded message ----------<br>From: <b class="gmail_sendername">Kat Walsh</b> <span dir="ltr"><<a href="mailto:kat@mindspillage.org">kat@mindspillage.org</a>></span><br>Date: Mon, Jul 13, 2009 at 1:21 AM<br>
Subject: [Foundation-l] Article: Public Domain Art in an Age of Easier Mechanical Reproducibility<br>To: Wikimedia Foundation Mailing List <<a href="mailto:foundation-l@lists.wikimedia.org">foundation-l@lists.wikimedia.org</a>><br>
<br><br>The Executive Director for Digital Policy of the J. Paul Getty Trust<br>
has written an article on digitally-reproducible works of public<br>
domain art, and museums' mission, arguing why and how museums should<br>
properly make these works as unrestrictedly available as possible --<br>
thought people here would find it a worthwhile read:<br>
<br>
<a href="http://www.dlib.org/dlib/november05/hamma/11hamma.html" target="_blank">http://www.dlib.org/dlib/november05/hamma/11hamma.html</a><br>
<br>
-Kat<br>
<br>
<br>
<br>
The piece is CC-BY-SA-2.5, so I am including full text here:<br>
-----<br>
<br>
Public Domain Art in an Age of Easier Mechanical Reproducibility<br>
<br>
<br>
Kenneth Hamma<br>
Exec. Dir. for Digital Policy, J. Paul Getty Trust<br>
<<a href="mailto:khamma@getty.edu">khamma@getty.edu</a>><br>
<br>
(This Opinion piece presents the opinions of the author. It does<br>
not necessarily reflect the views of D-Lib Magazine, its publisher,<br>
the Corporation for National Research Initiatives, or its sponsor.)<br>
<br>
<br>
<br>
In principle a work of art has always been reproducible [1].<br>
<br>
In all the arts there is a physical component which can no longer<br>
be considered or treated as it used to be, which cannot remain<br>
unaffected by our modern knowledge and power [2].<br>
<br>
Walter Benjamin opened his 1936 essay, Das Kunstwerk im Zeitalter<br>
seiner technischen Reproduzierbarkeit, with the first observation<br>
quoted above. He then extended the notion of reproducibility to<br>
suggest how it might mutate in a world that has changed since the<br>
world in which historical works had been created. Benjamin turned to<br>
Paul Valéry with the second quotation above, which continues a bit<br>
further:<br>
<br>
Just as water, gas, and electricity are brought into our houses<br>
from far off to satisfy our needs in response to a minimal effort, so<br>
we shall be supplied with visual or auditory images, which will appear<br>
and disappear at a simple movement of the hand, hardly more than a<br>
sign.<br>
<br>
Neither Benjamin nor Valéry could imagine the uses to which a<br>
copyright act might be put [3].<br>
<br>
Nearly every art museum today asserts intellectual property rights in<br>
reproduction images of public domain works in its collection. It is<br>
argued here that placing these visual reproductions in the public<br>
domain and clearly removing all questions about their availability for<br>
use and reuse would likely cause no harm to the finances or reputation<br>
of any collecting institution, and would demonstrably contribute to<br>
the public good. As those images have become increasingly regarded as<br>
assets and as the preferred delivery venue for images has become<br>
increasingly an electronic network, the question of whether to allow<br>
free access and reproduction has become vitally important and complex.<br>
The paradigm for sharing in this context is fundamentally different<br>
from anything we have known before. The manner in which these rights<br>
might be granted, that is, the associated language and processes, may<br>
require consultation with legal counsel. Doing it, however, is not<br>
complicated by legal constraints. The choice to do so is a business<br>
decision that can be evaluated by nonprofits by measuring success<br>
against their mission.<br>
<br>
The music industry's struggle to come to terms with the Internet has<br>
over the last years dominated much of our thinking about copyright and<br>
about a communications medium that has fundamentally changed notions<br>
of distribution and use. At the heart of this industry's problems seem<br>
to have been out-of-date business models, wildly divergent values with<br>
a wish that new technology would not be used, and rebellious consumers<br>
and artists. Those same problems are already vexing non-profits with<br>
visual assets. Over time every business – including museums and<br>
libraries – will have to manage for these kinds of changes. And here<br>
the recording industry's turmoil may provide some helpful guidance.<br>
Among other things, it should instruct the non-profit world to keep in<br>
focus its business, described by a mission-based bottom line. We might<br>
well ask ourselves, what is our business/mission that is to be<br>
extended into an online environment: Is it publishing? Research?<br>
Education? Access? Commercial licensing of images?<br>
Discussion<br>
<br>
Art museums and many other collecting institutions in this country<br>
hold a trove of public-domain works of art. These are works whose age<br>
precludes continued protection under copyright law. The works are the<br>
result of and evidence for human creativity over thousands of years,<br>
an activity museums celebrate by their very existence. For reasons<br>
that seem too frequently unexamined, many museums erect barriers that<br>
contribute to keeping quality images of public domain works out of the<br>
hands of the general public, of educators, and of the general milieu<br>
of creativity. In restricting access, art museums effectively take a<br>
stand against the creativity they otherwise celebrate. This conflict<br>
arises as a result of the widely accepted practice of asserting rights<br>
in the images that the museums make of the public domain works of art<br>
in their collections.<br>
<br>
Indeed, it is not at all clear that the institutional claims of<br>
copyright to such works would survive a legal challenge. The judgment<br>
in a 1999 case, BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., brought in<br>
a U.S. District Court for the Southern District of New York, held that<br>
the marketing of photographic copies of two-dimensional public domain<br>
master artworks, without adding anything original, cannot constitute<br>
copyright infringement when the underlying work is in the public<br>
domain. By and large, museums have been holding their noses and hoping<br>
this ruling will neither be broadly noticed nor challenged [4]. The<br>
fact that the ruling applies only to two-dimensional works of art<br>
likely provides little relief to those museums with a traditional but<br>
persistent pecking order that goes something like: paintings,<br>
drawings, everything else.<br>
<br>
When the distribution of reproductions of art works was accomplished<br>
with film-based slides, transparencies, and printed images, the harm<br>
caused by assertion of rights in images of public domain works to the<br>
mission of these publicly supported and tax-benefited institutions was<br>
less restrictive. Obtaining an image generally required moving a<br>
physical object, a film or a paper-based image from one place to<br>
another. Although images, once acquired, could be duplicated, to some<br>
extent the quality of the reproductions was always less than the<br>
quality of the originals. The restriction imposed by the assertion of<br>
rights in images was less visible and less burdensome to the extent<br>
that physical access was an a priori constraint accepted by all<br>
parties. Similarly, violations of use were difficult to find when that<br>
use involved a physical copy. The re-use of images and copies in<br>
university slide libraries, for example, was more likely to be<br>
overlooked by museums. Today, digital images can be copied from a web<br>
site, reproduced, and widely distributed quickly, with ease and little<br>
expense. While examples of museums chasing down digital image<br>
miscreants are rare to non-existent, the expectation that museums<br>
might do so has had a stultifying effect on the development of digital<br>
image libraries for teaching and research.<br>
<br>
In the online world, the assertion of rights either prevents the<br>
provision of images entirely or results in providing images that are<br>
marked in some way or are of low quality. Low resolution makes them<br>
useless for most uses. Because the Internet allows and encourages flow<br>
of information unlimited by a gatekeeper, museums choose to restrict<br>
access, not wishing to undermine their financial potential for<br>
commercial licensing.<br>
<br>
This resistance to free and unfettered access may well result from a<br>
seemingly well-grounded concern: many museums assume that an important<br>
part of their core business is the acquisition and management of<br>
rights in art works to maximum return on investment. That might be<br>
true in the case of the recording industry, but it should not be true<br>
for nonprofit institutions holding public domain art works; it is not<br>
even their secondary business. Indeed, restricting access seems all<br>
the more inappropriate when measured against a museum's mission – a<br>
responsibility to provide public access. Their charitable, financial,<br>
and tax-exempt status demands such. The assertion of rights in public<br>
domain works of art – images that at their best closely replicate the<br>
values of the original work – differs in almost every way from the<br>
rights managed by the recording industry. Because museums and other<br>
similar collecting institutions are part of the private nonprofit<br>
sector, the obligation to treat assets as held in public trust should<br>
replace the for-profit goal [5]. To do otherwise, undermines the very<br>
nature of what such institutions were created to do.<br>
<br>
Some art museums may generate a significant portion of revenues<br>
through commercial licensing of images of works in their collections,<br>
and that revenue may be vital for their continued operations. However,<br>
we have little to no data on the extent to which such revenues really<br>
currently support museum operations. There are no publicly available<br>
figures derived from any survey of net revenue generated by individual<br>
museums as a percentage of operating costs [6]. Neither is there good<br>
information on what percentage of revenues is based on public domain<br>
works or what percentage comes from works still under copyright<br>
constraints. We know even less about the costs associated with the<br>
generation of such revenue, monitoring infringement, and enforcing<br>
grievances – something traditionally ignored in the income analysis of<br>
nonprofits [7]. Answering these questions would provide insight as to<br>
whether there is enough revenue to be worried about.<br>
<br>
If the hope for significant commercial licensing revenue diminishes<br>
easy access to quality images for education and research, we might be<br>
tempted to ask, how much income justifies the diminution of the<br>
institution's mission driven goals? As seductive as the finance<br>
question is, the answer lies first in a policy choice for each museum.<br>
Nonetheless, it may also lie in a public policy choice with respect to<br>
the definition of the private nonprofit sector.<br>
<br>
Are there other revenue possibilities that have been overlooked<br>
because of the focus on commercial licensing? For example, it is clear<br>
that the public visibility of and familiarity with works of art<br>
generates interest in those works. That interest contributes to the<br>
revenues realized from entrance fees as well as bookstore and<br>
cafeteria sales. This generation of revenue is visible in the<br>
persistent use of images of well-known works in many venues as<br>
advertisements to drive traffic to the museum's front door. Why else<br>
would the paraphernalia that travels under the banner of King Tut<br>
return – yet again? The widespread distribution of images ultimately<br>
increases attendance at the museum.<br>
<br>
While the reasons for prohibiting the distribution of quality images<br>
online are frequently founded in an intention, however unrealistic, to<br>
benefit from their potential commercial exploitation, there exists as<br>
well the notion of controlling the proper educational and proper<br>
creative use of those images. This notion derives from something of a<br>
paternalistic stance by museums that has existed for more than a<br>
century, that they alone can properly interpret the works in their<br>
collections. By attempting to hold works of art within an<br>
institutional voice, the single interpretation has often effectively<br>
isolated those works from a more engaged public experience. This topic<br>
is much discussed today in many museums (also now with respect to<br>
audio tours), and while there has been a broad attempt to come to<br>
terms with the notion of single institutional voice, most museums<br>
continue to control all voices but their own by their restriction in<br>
the use of images of their works.<br>
<br>
What else motivates the notion of a proper use of images of works of<br>
art? Museums argue that the value of the original work diminishes in<br>
some way with familiarity – the kind of familiarity that might be<br>
brought on by the lack of appropriate explanation and context setting,<br>
by subsequent creative use, and by any creative use that may not be<br>
considered flattering to the collecting institution. But the net<br>
effect of experience with commercial and creative reuses of an image<br>
can best be demonstrated by looking to the Mona Lisa. When viewing the<br>
Mona Lisa at the Louvre, do we laugh at Leonardo da Vinci's famous<br>
painting because others have made a long career of spinning off wall<br>
paper, cookie jars, cigar bands, and so on, that use the reproduced<br>
image of the Mona Lisa? Do we fail to react to the mysterious Mona<br>
Lisa smile in the painting because we've seen her smile so often and<br>
so ubiquitously in other contexts? Museums' collections of public<br>
domain art, along with images of public domain works in libraries and<br>
archives, represent a public trust, a public commons of cultural<br>
heritage. While we currently do not find it odd to be asked to pay for<br>
access to an online library of digital images of public domain works<br>
of art, we would find it untenable to have to pay for such access upon<br>
entering a library to consult public domain materials. And while each<br>
museum must establish its own values, most such institutions would<br>
readily agree that their values fundamentally include concern for the<br>
past and future of ideas and creativity as they relate to the objects<br>
they shepherd. An institutional analysis of income might suggest,<br>
museum by museum, that the take at the front gate far outweighs or<br>
could far outweigh all net licensing revenues.<br>
<br>
Would it not, then, be reasonable to put high quality images of public<br>
domain art back into the public domain, unfettered and unrestricted<br>
for all? Would it not be in everyone's better interest to make it easy<br>
to share these resources, such as using the Internet to provide access<br>
to them for public education and benefit? While looked at through the<br>
lens of potential commercial licensing income, this may seem too<br>
trivial an issue to consume leadership time, but looked at through the<br>
lens of a healthy public commons for creativity, there may be no<br>
easier or better service for museum leaders to provide.<br>
Epilogue<br>
<br>
This article has argued that making visual reproductions of public<br>
domain art works available for use and reuse without charge would<br>
likely benefit the collecting institutions and would contribute to the<br>
public good. Nevertheless, there are several possible secondary<br>
consequences of acting on this proposal. To a large extent, those<br>
consequences are unpredictable even though they may be anticipated.<br>
<br>
Any individual museum that unilaterally withdraws its assertions of<br>
intellectual property rights in images of public domain works, which<br>
seems the most likely starting point for any change in policy, may<br>
earn a reputation of having effectively undermined the assumed future<br>
potential for all fine arts image providers. To most users of images,<br>
one Monet is pretty much like another for a DVD cover that is to be<br>
mainly blue and green. One Boucher may be much like the next for a<br>
Mother's Day greeting card. For these purposes, an unencumbered image<br>
is much more likely to be used – by almost everyone – than one<br>
available for use under license and with restrictions. A large<br>
institution may be accused of using its size and power to undercut<br>
others with some variation of "they could do this because they have<br>
revenues from tickets or their bookstore or endowment." While that<br>
argument would not be a particularly meaningful response to the policy<br>
issue at hand, it might be effective spin.<br>
<br>
On the other hand, a potential upside may coincide well with a closely<br>
related issue, namely promoting the management of and respect for<br>
intellectual property rights in works that are not in the public<br>
domain. Permitting an enormous wealth of images of finely crafted<br>
works to circulate freely may act as something of a pressure release –<br>
assuming at least some pent-up public demand for available images.<br>
More importantly, if properly handled, this opportunity to increase<br>
the public domain could focus attention on intellectual property<br>
rights in a very positive way, creating an opportunity for any museum<br>
to explain the value of respecting rights for works still under<br>
copyright. The current time frame for copyright may seem a long time,<br>
but it is an appropriately ephemeral period of control compared to the<br>
unlimited time span implicit in most current museum practice.<br>
<br>
Easy and unfettered access seems likely to make a museum's collection<br>
online a more attractive and consequently more used resource. That<br>
attractiveness might be leveraged into revenue by providing<br>
opportunities within a general public view of the collection online to<br>
acquire – for a fee – cards, posters, and other products. It is true<br>
that without the exclusivity guaranteed by intellectual property<br>
control, other market forces may come to bear. But aren't those forces<br>
already familiar and similar to those that affect the popularity of a<br>
museum's collections and exhibitions in a larger world of education<br>
and of leisure time activities?<br>
<br>
Obviously these opportunities are available to museums only because of<br>
the Internet, where a mouse click is Valéry's conjecture that "we<br>
shall be supplied with visual or auditory images, which will appear<br>
and disappear at a simple movement of the hand..."<br>
Acknowledgement<br>
<br>
This piece has been contributed in memory of the late Stephen Weil,<br>
former Deputy Director, Hirshhorn Museum and Sculpture Garden and<br>
scholar emeritus, Center for Education and Museum Studies, Smithsonian<br>
Institution, who passed away in August 2005.<br>
Notes and References<br>
<br>
[1] Walter Benjamin, Das Kunstwerk im Zeitalter seiner technischen<br>
Reproduzierbarkeit.<br>
<br>
[2] Paul Valéry, Pièces sur l'art, (Le conquête de l'ubiquité).<br>
<br>
[3] "What we have right now is an exponentially expanding intellectual<br>
land grab, a land grab that is not only bad but dumb, about which the<br>
progressive community is largely silent, the center overly sanguine,<br>
and the right wing short-sighted." James Boyle, Shamans, Software and<br>
Spleens: Law and the Construction of the Information Society (1966).<br>
<br>
[4] BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191<br>
(S.D.N.Y. 1999)<br>
<<a href="http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm" target="_blank">http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm</a>> and<br>
<<a href="http://www.panix.com/%7Esquigle/rarin/corel2.html" target="_blank">http://www.panix.com/~squigle/rarin/corel2.html</a>> which reveals a very<br>
interesting response from one part of the museum community.<br>
<br>
[5] While the revenue streams from image licensing hardly rise to the<br>
bar set by the merchandizing activities of the most ambitious of<br>
museum stores, which has been a point for questioning tax-exempt<br>
status, its impact on access and so on mission is arguably greater and<br>
might be more visible in discussions of nonprofit sector policy as,<br>
e.g., introductory chapter of Marion R. Fremont-Smith, Governing<br>
Nonprofit Organizations, 2004 (pp. 1-18).<br>
<br>
[6] The most recent study on this was commissioned by the Mellon<br>
Foundation and delivered by Simon Tanner for King's Digital<br>
Consultancy Services, Reproduction charging models and rights policy<br>
for digital images in American art museums, 2004, which pointed to 56<br>
of 100 museums with budgets over $10 million receiving less than<br>
$50,000 annually from digital rights transactions. This study did not<br>
address the policy issue of this paper – except to ask museums if<br>
unauthorized use of images of public domain works constituted 'fair<br>
use' (p. 31) – but limited its conclusions to managing rights<br>
services, pricing structures and revenue. Previous studies have tended<br>
to focus on the revenue potential of image licensing without regard to<br>
the status of the intellectual property in the underlying work. For<br>
example, The Marketing Works, Like Light Through a Prism: Analyzing<br>
Commercial Markets for Cultural Heritage Content, January 1999, and<br>
Glen Bloom, An Analysis of Economic Models for Administering Museum<br>
Intellectual Property, March 1997, "In addition to serving their<br>
traditional role of making their collections available to the public,<br>
particularly by licensing their images, museums may be able to<br>
capitalize on the value of their collections..."<br>
<br>
[7] The Tanner report cited above notes, p. 35, "Everyone interviewed<br>
wants to recoup costs but almost none claimed to actually achieve or<br>
expected to achieve this." And "Even those services that claimed to<br>
recoup full costs generally did not account fully for salary costs or<br>
overhead expenses."<br>
<br>
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